Introduction
Although ultrasound has been used in various settings
for decades, it is only in the past 10 to 15 years that
critical care physicians have increasingly become
aware of its usefulness. For example, critical care
echocardio graphy was initially used in patients following
cardiac surgery; soon it expanded to include diagnosis
and monitoring in the ICU [1,2].
While critical care ultrasound is seen as an indis-
pensable tool in the ICU nowadays, proper training and
assessment modules are still lacking in many countries.
 e level of competency of practitioners varies greatly -
some are very experienced and knowledgeable, while
others have little practical experience. International state-
ments (guidelines) specifying the requirements for diff er-
ent levels of competency and the scope of knowledge
have been published [3,4].  ese statements acknowledge
the need for establishing a unifi ed training pathway, the
rationale of which mostly rests on improving the clinical
skills of the physicians, hence the manage ment and care
of patients.
 is article examines the need for establishing a proper
training and assessment program but from a medical-
legal perspective.  e competency of healthcare pro-
viders and the provision of a reasonable standard of
healthcare service are inter-related, and the failure of
either one has not only legal but also cost and psycho-
logical implications for healthcare providers and patients.
While this article is written from an Australian legal
perspective, similar principles can be found in many
other jurisdictions.

the practitioners and/or the healthcare institutions
to lawsuits in professional negligence or breach of
contract. These issues, among others, include the failure
to use ultrasound in appropriate situations, the failure
of hospitals to ensure practitioners are properly trained
in the skills, the failure of practitioners to perform an
ultrasound study that is of a reasonable standard, and
the failure of practitioners to keep themselves abreast of
the latest developments in treatment and management.
The implications of these issues and the importance of
having a certi cation process are discussed.
© 2010 BioMed Central Ltd
Do we need a critical care ultrasound certi cation
program? Implications from an Australian
medical-legal perspective
Stephen J Huang and Anthony S McLean*
VIEWPOINT
*Correspondence:
Department of Critical Care Medicine, Nepean Hospital School, Sydney Medical
School, Sydney, NSW 2750, Australia
Huang and McLean Critical Care 2010, 14:313
/>© 2010 BioMed Central Ltd
service, namely diagnosis, advice and treatment, to the
patient with reasonable skill and care [6].  ere is an
implied term in the contract where the doctor is to
exercise ‘reasonable skill and care’ in the provision of
professional advice and treatment.  ere is also a duty to
warn the patient of any material risk inherent in the
proposed treatment or procedure. However, there is no
warranty that the treatment will succeed, unless a

the patient of any material risk inherent in the proposed
treatment or procedure [9].
Breach of duty
Breach of duty is the failure to meet the duty imposed
under a contract or tort law. In a doctor-patient relation-
ship, it is the failure to provide the required professional
service (in the form of diagnosis, advice or treatment); or
the failure to provide such service at a reasonable
standard. A wrong diagnosis or errors in treatment do
not by themselves establish a breach of duty, provided
that the process of arriving at those decisions is carried
out with reasonable skill and care - a standard reasonably
expected of a practitioner with an equivalent level of
training and experience [9].
Before the Tort Law Reform in Australia, the standard
of care to be observed by medical practitioners was not
to be determined solely or even primarily by medical
practice. It was for the court to judge what standard
should be expected from the medical profession [9,10]. In
other words, the doctor’s conduct has to conform to the
standard of reasonable care demanded by the law [11].
Following the Tort Law Reform and enactments of the
Civil Liability Acts (or its equivalents) in most Australian
states between 2002 and 2003, the standard of care is
taken to be a standard that conforms with the opinion
that is widely held by a signifi cant number of respected
or competent practitioners in the fi eld, unless the court
considers that opinion is irrational or unreasonable [12].
 is is similar to the approach adopted in the UK, and
has the eff ect of avoiding unacceptable results where

familiar with, and to avoid doctors from invoking
‘inexperience’ as a defence to an action for professional
negligence [14,15]. On the other hand, specialists, or
doctors who hold themselves out as having special skills,
may be required to meet the standard of a doctor with
those special skills or a higher standard than the ordinary
Huang and McLean Critical Care 2010, 14:313
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practitioner.  erefore, where ultrasound is applied, it is
expected the practitioner will possess the relevant skills
and experience in that particular application.
A healthcare institution or employer has a duty to
ensure that the doctor provided is adequately qualifi ed to
carry out the procedure in question [16]. In Brus v ACT
[16], the defendant hospital was held negligent in permit-
ting a registrar to perform a vaginal hysterectomy that
was beyond the capacity of the registrar in question. As a
result of poor surgical skills, the patient’s fallopian tube
was entrapped in the suture line and later prolapsed into
her vagina, causing sustained pain.  e hospital, as
employer, was held liable for negligence. In the context of
critical care ultrasound, hospitals and employers have a
duty to ensure doctors performing ultrasound are
properly trained to perform such procedures.
Continuing education and up-to-date information
As part of a duty to exercise reasonable skills and care,
there is a duty on a doctor in certain circumstances to
inform themselves of up-to-date information concerning a
proposed treatment or procedure. Clinical practice
changes over time as new evidence emerges. A failure to

single electrocardiogram on the patient despite negative
neurological investigations. When the patient was
18 years old, he had another episode of syncope that left
him with hypoxic brain damage. It was found later that
the patient had long QT syndrome, which could be easily
picked up by electrocardiogram.  e GP was held liable
for professional negligence [20]. Deliberately (or perhaps
recklessly) taking a risk of grave danger, when that risk
could be avoided relatively easily with little expense or
risk, will amount to negligence (Box 5) [21].
In some cases, a practitioner may breach his/her duty if
he/she does not realize his/her limitations and fails to
Box 1. Hucks v Cole [1993] 4 Med L R 393
In Hucks v Cole, a pregnant woman presented to her general
practitioner (GP) with septic spot but was given no treatment.
The woman gave birth 3 days later but developed more spots.
The GP prescribed and continued tetracycline despite pathology
results showing that the bacteria was sensitive to penicillin.
The woman later developed fulminating septicaemia and was
seriously ill. At the trial, although a number of distinguished
medical experts gave evidence that they would not give
penicillin, the GP was found to have been negligent nevertheless.
The court found the medical expert opinion unreasonable
because the risk of causing grave danger could have easily and
inexpensively been avoided [21].
Box 2. Hypothetical scenario of an inexperienced
practitioner performing an echocardiography
A doctor with little experience and training in echocardiography
decides to perform an echocardiogram on a patient with acute
onset dyspnea and hypotension. The  ndings are reported to be

the surgeon revealed the lump was malignant. Although
denied by the defendant, the court considered the delay
in referral was to avoid the opprobrium associated with
the botched procedure.  e cancer had metastasized and
the plaintiff later died as a result.  e court accepted that
the delay in diagnosis meant the patient lost the chance
of a full recovery or at least a longer life.  e contentious
point was again not the missed diagnosis but the standard
of skill and care provided by the GP.  e duty to refer is
now recognized as part of the reasonable skill and care
expected from a doctor. Where ultrasound has been
applied and the practitioner is uncertain of the fi ndings,
it behoves that practitioner to refer the patient to a more
skilled sonographer. For example, if a basic (or level 1)
echocardiogram is provided in the acute situation and
the operator identifi es unexplained abnormalities, then
he/she should refer the patient for a full echocardio-
graphic study.
Failure to diagnose
Failure to diagnose and misdiagnosis per se are not evi-
dence of breach of the standard of care.  e law of
negligence in Australia recognizes the limitations of
doctors, and does not require doctors to be perfect [23].
 e law is not concerned with absolute scientifi c accu-
racy in making diagnoses, but it does require a doctor
with ordinary competence to exercise reasonable skill
and care in reaching a diagnosis [24]. In doing so, he/she
must show the standard of his/her practice is concordant
with a competent practitioner of his/her experience
(Boxes 6 and 7) [25-27].

 e hospital is also liable for breach of duty by any of
its employee practitioners.  e employer hospital has a
duty to ensure its staff who perform critical care ultra-
sound are competent and qualifi ed.
Box 4. Sherry v Australasian Conference Association & 3
Ors [2006] NSWSC 75
In Sherry v Australasian Conference Association & 3 Ors [2006]
NSWSC 75, Mr Sherry underwent minimally invasive direct
coronary arterial bypass, and was admitted to ICU on completion
of the procedure. There was ample evidence that the patient was
su ering from hypovolaemia, possibly blood loss, the next day.
The patient also complained of chest pain and, on examination,
decreased air entry on the left chest. The intensivist-in-charge
made a provisional diagnosis of pneumothorax without
performing a simple percussion test. X-ray revealed the patient in
fact had haemothorax, which the intensivist-in-charge had failed
to diagnose in time. The patient was left in a shock state and later
died. The intensivist-in-charge was found to have been negligent.
The court, with the support of expert evidence, held the view
that if the intensivist-in-charge had performed a percussion
test, he would have been alerted to haemothorax rather than
pneumothorax and would have taken appropriate action. The
hospital was also found to have been negligent in this case for
providing poorly quali ed nursing sta because the nursing sta
failed to recognize the vital signs of hypovolaemia and also failed
to alert the intensivist-in-charge.
Box 5. A scenario of blind versus ultrasound-guided
pericardiocentesis
Blind pericardiocentesis is still commonly practiced nowadays.
However, when ultrasound is easily accessible, the failure to

tioners. To avoid variability in standards, both certifi -
cation processes are provided by a single profes sional
body that is well-recognized and widely accepted in
Australia and New Zealand, the Australasian Society of
Ultrasound in Medicine.
Conclusion
Medical practitioners owe a duty of care, arising from
contract and/or tort laws, to their patients.  e duty of
care demands the practitioner provides a professional
service with reasonable skill and care - a standard of care
that is expected of a competent practitioner in the same
position. By providing a service that is below the expected
standard of care will result in a breach of duty and render
a practitioner liable for breach of contract or negligence.
In some cases, it may amount to professional misconduct.
Breaches of standard of care come in various forms.
With the costs of ultrasound equipment decreasing and
the advancement in ultrasound technology and know-
ledge, it is inevitable that ultrasound will become an
indispensable tool in the next few years. In fact, many
ICUs nowadays have an ultrasound machine available in
their units, or at least accessible in the hospitals.
Considering the benefi ts it confers on patients, it is
unacceptable and almost inexcusable in some cases not
to utilize ultrasound in the management of patients, for
example, ultrasound-guided pericardiocentesis and
vascular access. Practitioners, on the other hand, have to
ensure they have the required skills and experience to
enable them to perform and interpret the studies compe-
tently.  ey should also keep themselves up-to-date with

and care, and there was insu cient evidence of a persisting
abnormality to have alerted the GP that he should order further
investigations [26].
Box 7. Negligent for failure to diagnose
In O’Shea v Sullivan, a GP and a pathology laboratory were
held liable for failure to detect cervical cancer in a patient who
complained of intermenstrual bleeding and post-coital bleeding
[27]. The initial examination made by the GP was less than
reasonably thorough. In a subsequent visit, the GP examined the
patient’s cervix and mistook the malignancy for an erosion or
small ectopic columnar epithelium. The GP did not pursue the
case further and failed to refer the patient to a gynaecologist.
Although pap smear examination was carried out, the pathology
laboratory incorrectly reported the  ndings to be ‘mild squamous
atypical cells possibly due to in ammation’ rather than CIN3/
micro-invasive cancer cells. Given the marked di erence
between mild atypia and CIN3, the wrong assessment could
not be explained by an acceptable di erence in interpretation.
Both the GP and the pathology laboratory were found to have
provided a substandard professional service leading to missed
diagnosis.
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